“Facts are stubborn things”: The meaning and value of Judge Walker’s Prop 8 decision

(Hey everyone. Paul Hogarth, yet another Prop 8 Trial Tracker contributor from our daily trial coverage back during the trial in January chimes in here with his analysis of today’s ruling. Paul is an attorney at the Tenderloin Housing Clinic in San Francisco and the Managing Director of BeyondChron.com. He was also recently voted “Best Local and State Blogger” by Netroots Nation attendees. — Eden)

By Paul Hogarth

My good friend (and fellow lawyer) Brian did a great job summarizing the legal arguments that Judge Walker raised, so I won’t necessarily repeat them.  But one thing he did say bears repeating:

Most of the decision (the first 109 pages) is the “factual findings.”  This is crucial, and here’s why.  On appeal, Judge Walker’s conclusions of law are basically irrelevant.  Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference.  On the other hand, only a trial court can make factual findings.  A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony.

He’s right.  We always knew a favorable trial decision would be appealed probably all the way up to the U.S. Supreme Court, so the legal theories advanced by Judge Walker have limited value.  But as Ronald Reagan famously said, “facts are stubborn things” — and the trial court’s findings of fact and rulings on credibility are here to stay, no matter what Scalia, Thomas, Roberts or Alito think about (as Stephen Colbert would say) “two dudes getting married.”  So for my analysis, I’ve decided to cover the most significant findings of facts and credibility that Walker called, and why it matters the most:

On the Will of the People: “An initiative measure adopted by the voters deserves great respect.  The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determination of the voters.  When challenged, however, the voters’ determination must find at least some support in evidence … Conjecture, speculation and fears are not enough (page 24.)”

Not a finding of fact per se, but a credibility judgment that directly confronts the whole “will of the people” demagoguery we get from the other side.

Fact #27: Marriage between a man and a woman was traditionally organized basedon presumptions of a division of labor along gender lines.  Men were seen as suited for certain types of work and women for others.  Women were seen as suited to raise children and men were seen as suited to provide for the family.

Fact #32: California has eliminated marital obligations based on the gender of the spouse.  Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependents.  As a result of Prop 8, California nevertheless requires that a marriage consist of one man and one woman.

I put these two together, because they very nicely form the basis of Walker’s argument – restricting marriage to opposite-sex couples is an archaic concept that relies on a presumption that men and women are different, and somehow both indispensable to form a marriage.  Even if Supreme Court judges don’t believe gay people can marry, they still need a rational basis (at least) for excluding same-sex couples — and “just because” won’t be an adequate answer.

Fact #44: Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.  Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.

Fact #48: Same-sex couples are identical to opposite sex couples in the characteristics relevant of the ability to form successful marital unions.

Again, these two facts gel nicely together.  In his legal analysis, Walker says that sexual orientation is a “suspect class,” but we don’t even need to do strict scrutiny because Prop 8 even fails the rational basis test.  One of the essential elements of a suspect class (which I explained in detail before) is if gays are a distinct minority, whose trait is immutable and an essential element of their being.  Fact #44 essentially encodes that in, a finding of fact that higher courts will have to deal with.  Fact #48 is also important because, once we determine gays are a distinct minority, there is no compelling reason to treat them differently.

Fact #58: Prop 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

Fact #67: Prop 8 singles out gays and lesbians and legitimates their unequal treatment. Prop 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.

Fact #79: The Prop 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian.  The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements.

I put these three facts together, because combined they put on a compelling case that Prop 8 was motivated by an irrational fear (animus) that is unconstitutional according to Romer v. Evans (1996.)  If all the “rationales” — stated or unstated — in favor of passing Prop 8 were mere subterfuges for bigotry, any court would have to find it violates the 14th Amendment.  Walker helps call a spade a spade, and I look forward to seeing how Justice Scalia would try to find some legally consistent way of addressing this.

Again, the Ninth Circuit and Supreme Court are free to reject Judge Walker’s legal reasonings.  But they cannot question his findings of fact, which were all amply proved at trial.  As Ronald Reagan said, “facts are stubborn things” – and they’re here to stay.

Judge Walker’s Questions for Closing Statements

By Paul Hogarth

Today, Judge Vaughn Walker delivered a series of 29 questions (12 to plaintiffs, 12 to Prop 8 supporters, and 15 to both) that will guide the Closing Statements. You can read them all here. “What follows is by no means an exhaustive list of questions,” he writes, “but is intended simply to assist the parties in focusing their closing arguments.”

But what some of them reveal is where the Judge is going with this case, and what we can expect the verdict to be. I’ve culled the ones that I think are more legally significant:

Plaintiff Question #1: Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Prop 8 was rationally related to a legitimate interest. Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Prop 8? See Hernandez v. Robles 855 NE2d 1, 7-8 (2006) (“In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and a father in the home.”)

This, really, is the crux of the plaintiff’s case – and whether we can prevail on a “rational basis” test. To say that Prop 8 authors were motivated by hatred is easy – that’s been proven already.

But how can you say the millions of voters who went “yes” on Prop 8 are bigots? It would be impossible to prove that they are.  The way we prevail is to show that those people – while honestly believing they were doing the “rational” thing – were merely acting irrationally.  It goes back to San Diego Mayor Jerry Sanders testimony, when he said that it took a long time for him to realize his “rational” views against gay marriage and for civil unions were merely opinions rooted in prejudice.

Unless the Supreme Court is willing to take a leap to recognize sexual orientation as a suspect class (and we should not presume it would go that far), that’s the only way we are going to repeal Prop 8 in this case.

The fact Walker asked this question is encouraging.  As for the citation to the Hernandez case, that was the New York high court case that said it was “rational” to give straights but not gays the right to marry because straights might “accidentally” have kids.

Plaintiff Questions #3 and #4: Until very recently, same-sex relationships did not enjoy legal protection anywhere in the United States.  How does this square with plaintiffs’ claim that [same-sex] marriage is a fundamental right?  What is the import of evidence showing that marriage has historically been limited to a man and a woman?  What evidence shows that that limitation no longer enjoys constitutional recognition.

In other words, can “tradition” be a “rational basis” for denying someone this right?  It reminds me of the old saying that the word tradition means something we’ve been doing for centuries, and have forgotten why.  (Images of the “Fiddler on the Roof” musical are now seeping through my head.)  This question is practically inviting our side to make the connection with interracial marriage, racial segregation, etc.  After all, blacks in the South were never treated equally.  Will it work?  Probably with this Judge, but keep in mind that courts generally give great deference to tradition — so it’s a tough hill to climb.

Plaintiff #6: What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?

I cringed when I first read this – “empirical” seems like quite a limitation, but I think our side can really seize on this question to highlight the social importance of marriage equality.  And how the forces behind Prop 8 are the same ones who are against the “anti-bullying” legislative fights we’ve gone through in public schools.

Plaintiff #10: Even if enforcement of Prop 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law.  Can the court find Prop 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?

This, my friends, is the inevitable DOMA question – and why folks like me had qualms about us taking Prop 8 to federal court without mentioning DOMA, and whether we were even putting the cart in front of the horse.  After all, even if we get the right to marry in California – that’s only half the battle.  We still don’t have any federal rights – Social Security benefits, joint tax returns, immigration rights, etc.  Frankly, I have a hard time seeing how a federal challenge to Prop 8 does not implicate DOMA as well.

While we’re having this legal fight here on the West Coast, on the East Coast the civil rights group GLAD has filed a lawsuit in federal court to challenge DOMA.  It’s on behalf of several gay Massachusetts couples, who nobody denies are legally married.  The question there is whether DOMA denies them the equal rights under law.  The federal government’s response in that case is to effectively say, “you have the right to get married – but there’s no constitutional right to the legal benefits of marriage.”  How our Prop 8 lawsuit and the DOMA challenge in Boston play on each other is going to be fascinating and (let’s hope) complementary.

Defendant #2: Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences?  What does the evidence show the magnitude of these consequences to be?

Essentially, Walker is telling the Prop 8 side to put up or shut up.  There’s been a lot of discussion on this blog about how shallow the opposition’s case has been in favor of Prop 8, and how their one expert witness – Blankenhorn – proved to be quite underwhelming.  Our challenge will be to link all of their “consequences” to mere bigotry – which will be easy for most of them.

Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father.  Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible.  What evidence if any shows that Prop 8 furthers this state interest?

This, my friends, is a dynamite question – and can really help destruct the opposition’s case.  A “rational basis” is a justification that is “rationally related” to a “legitimate government interest.”  The right-wingers always talk about “family” and the need to “protect our children.”  But Prop 8 really only did one thing – make it impossible for gay couples to get married.  It did not – and could not – help a single child who otherwise would not have been get raised by their biological parents.  If the opposition can’t make this link effectively, the Court can’t possibly find a rational reason for denying loving gay couples the right to marry.

Both Sides #6: In order to be rooted in “our Nation’s history, legal traditions and practices,” see Washington v. Glucksberg, 521 US 702, 710 (1997), is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?

Very encouraging question for our side.  “Tradition” may be a rational basis for certain laws, but not tradition per se – The fact that gay couples have not had the right to marry historically is a fact worth considering, but Judge Walker is effectively asking our opponents to “put up or shut up.”  Provide proof – beyond circular logic that “it’s always been that way” – that we should proceed with the traditional definition of marriage.  Courts are inherently conservative, and reluctant to overturn traditions – but Walker is injecting an important distinction: traditions that are still justifiable and reasonable, versus those that have no real purpose left.

FINALLY: Closing Arguments Set for June 16th

By Paul Hogarth

So now we finally have a date for Closing Arguments for the Prop 8 trial — Wednesday, June 16th, or 156 days after the start of the Trial.  By now, we’ve heard the evidence, we know what’s been said, and there’s been a lot of analysis on this site about what it means for the outcome, our movement, and our lives.

But besides setting a date for closing arguments, Judge Walker set a date for the defense counsel to submit their motion to suppress at least part of Dr. Tam’s testimony.  As you recall, Dr. Tam was the right-wing San Francisco minister who believed that his kids will turn gay if marriage equality was allowed to remain.  We’ll find out on May 7th how much of the testimony they want stricken from the record, and what is their basis.  Our side will have until May 10th to then file an objection.

So what happens if Dr. Tam’s testimony is taken out?  Dr. Tam was powerful evidence that Prop 8 was driven by animus and a hatred of homosexuals, which would be enough to strike Prop 8 — even under the more lenient “rational basis” grounds set up in Romer v. Evans (1996.)  But while Dr. Tam’s testimony is damning and it should be kept in, there was a whole lot of other evidence that our side presented.  In fact, when it came time for the defense to produce their “experts,” there wasn’t a whole lot of reason they could provide.

If it’s impossible to dream up a “rational” basis for deny LGBT people the right to marry the person they love, and all the reasons the defense provides is merely a subterfuge for bigotry, Prop 8 must be found unconstitutional.  Dr. Tam’s testimony was the most dramatic and forceful, but our side put on a good case tying other “rationales” for Prop 8 to be simply animus.  In fact, I would argue the strongest witness we had for our side was San Diego Mayor Jerry Sanders — who explained how he came to the realization that his so-called “friendly” reasons for opposing gay marriage had merely been based out of irrational discomfort.

Don’t They Know Imitation is the Sincerest Form of Flattery?

By Paul Hogarth

Regarding Prop 8’s failed attempt to take down our logo, Dante Atkins — friend of the Courage Campaign, and front-pager on Daily Kos — had this to say:

“The all-time stupid part is that they’re wasting time trying to get Courage to … stop using a parody logo.  Even if they were successful and after a process that would resolve itself long after Perry ends, the only thing they would accomplish is to prevent the site from using a logo.  And in the process, all they do is create more attention for the site.”

He does have a point there.  The First Amendment is pretty broad when it comes to parody, so their lawyers should have known their chances at winning were slim to none.  When you’re writing a book, the best way to boost up sales is to have someone file an injunction to block it from being published.  I’m reminded of how Fox News sued Al Franken for Lies and the Lying Liars that Tell Them, because they said the book misappropriated the term “fair and balanced.”  Fox’s own lawyers didn’t want to file the suit, but Bill O’Reilly was so pissed off that he insisted they do so — all it did was make Al Franken’s book a bestseller.  Certainly motivated me to go buy it.  I mean, dammit … if people want you not to see it so bad, there must be really good stuff in there!

And it’s true.  Our traffic hits went off the charts after this … thanks, Prop 8 campaign!

But that’s not how the opposition is thinking.  See, I don’t think they really believe most of the garbage that they’re spewing out.  The right-wing movement to pass Prop 8 — and other anti-gay amendments — are really part of a strategy to keep right-wing conservatives in power.  There’s lotsa money to be made keeping the masses distracted by cultural, wedge issues — and to dredge up homophobia and malice against the “other” (in this case, gays) helps propel them politically.  These folks have money to burn — where else do you think the National Organization for Marriage gets their money from, and how it just comes out of nowhere?

So a lawsuit to take down a logo on some website?  Small potatoes for them — there’s more money where that came from.  I don’t believe they’re even thinking about how it helps our website, and how we use this site to build community and a movement.

Brief Thought on Lee Badgett’s Testimony

By Paul Hogarth

Lee Badgett is providing — and re-inforcing — much of the same evidence that Prof. Peplau and economist Edward Egan provided.  That marriage equality is good public policy, and has a beneficial economic and psychological benefit.  Badgett’s statistics comparing how many gay couples got married in California when it was legal — relative to domestic partnerships — is analogous to the data that Peplau gave for Massachusetts couples.  But again, this evidence is not likely to be very relevant — unless the federal Courts take the unprecedented move that gays are a “suspect class” (following the lead of California, Iowa and Connecticut.)

But what I found most helpful was the evidence that gay marriage doesn’t hurt heterosexual couples.  This goes towards disproving a “rational basis” that the Court might dream up to justify Prop 8.  Nobody’s come out directly to say it hurts straight marriage, but if this gets raised by the defense — or the Court — it will be important to have evidence that such a basis is just merely irrational.

Why Jerry Sanders’ Testimony Mattered …

By Paul Hogarth

I’ll have to admit I was a bit skeptical about having San Diego Mayor Jerry Sanders come to the stand in this trial. Sure, the guy is better known than the other witnesses and it gives the trial a “celebrity” twist — but how does it prove the plaintiff’s case?

After reading Brian’s live-blog, I understand. The defense is trying to prove that Prop 8 was not motivated solely by animus — that there were “rational” reasons from good “pro-gay” people to take away the right to marry from same-sex couples. Middle-of-the-road politicians who support “civil unions” (like Barack Obama) is a theme we will hear from the defense over and over again.

Remember that Justice Kennedy’s decision in Romer v. Evans overruled Colorado’s anti-gay law because its purposes could not be extricated from anti-gay bias. If our side can’t link the “rational” reasons for passing Prop 8 to prejudice, we could lose.

Sanders is an example of someone who is “pro-gay,” but who always felt that civil unions were an acceptable alternative — until he finally had a change of heart. Now he knows this opinion was “rooted in prejudice,” even if that doesn’t make him a bigot overall.

Not all supporters of Prop 8 were bigots like Dr. Tam. But that doesn’t mean non-bigoted people can still have opinions rooted in prejudice. What the plaintiffs are proving is — even the most “tolerant” reasons for passing Prop 8 were rooted in prejudice.

On cross-examination, Sanders was asked if he had supported civil unions: “I thought it was a reasonable alternative, I didn’t think I felt hatred. In retrospect, it was clouded in prejudice.” Hatred vs. prejudice — both of them are an “irrational basis.”

“Home Court Advantage” – Can Gays Be a Suspect Class?

By Paul Hogarth

So much of the law hinges on which side has the burden of proof.  The team with “home court advantage” doesn’t have to prove anything — and right now, unfortunately, it’s the Prop 8 side.  Because federal courts haven’t recognized gays as a “suspect class,” our side’s task is to affirmatively prove there was no rational basis for Prop 8 — that all their “reasons” are just bigotry by another name.  Any reason the opposition cites that is not “irrational” can disprove our case.  Moreover, the Court can even dream up a rational basis – like they did in New York (“straights might accidentally have kids, so there’s more of a reason to let them marry.”)

But if somehow this case leads to gays being a “suspect class,” the tables are turned.  The Prop 8 side would then have to prove there was a compelling public interest — narrowly tailored through the least restrictive means.  If we then poke holes in the interest cited, we win.  I’ve written a lot about this in the past week — but haven’t explored in depth: how do we make gays a suspect class, and what are the odds that a federal court would take the leap that it hasn’t yet done that would legitimize sexual orientation?

To date, only three State Supreme Courts have recognized gays as a “suspect class” — California, Iowa and Connecticut — and not co-incidentally, they all ruled in favor of gay marriage.  Massachusetts also ruled for gay marriage, but what’s interesting about that case is they never said gays are a “suspect class.”  The Court said we don’t even need to go there — because there is no possible rational basis to deny gays to marry.  Of course, all these cases were about an individual state’s constitution — not the federal.

Colorado’s Supreme Court — in Evans v. Romer (1994) — said gays are a suspect class under the federal Constitution, and repealed Colorado’s Amendment 2.  The decision to throw out Amendment 2 was affirmed in Romer v. Evans (1996), but the U.S. Supreme Court said they were doing so “on a rationale different from that adopted by the State Supreme Court.”  Justice Kennedy went on to argue Amendment 2 doesn’t even pass the lenient rational basis test.  That could mean one of two things: either he meant gays are not a suspect class, or like Massachusetts he was saying “we don’t even have to go there.”  A footnote in Romer does explicitly say that the Court “evidently agrees” gays are not a suspect class, but that was part of Scalia’s dissent – so it is not binding precedent.

In other words, the feds have not found gays to be a “suspect class” — but arguably they never really said the opposite.  What would have to be proven that gays are a suspect class?  As I mentioned on Thursday, the U.S. Supreme Court has a four-part analysis:

(1) Are gays a “discrete and insular” (i.e., identifiable) minority?  Nobody’s really arguing this point.

(2) Do gays have a history of discrimination?  Again, we find this truth to be self-evident.

(3) Are gays politically powerless so as to be in need of assistance?  That’s why the Prop 8 side — when they cross-examined Yale historian George Chauncey — kept pointing out how gays have become more politically powerful in recent years, that Nancy Pelosi is a “strong ally” and that “Brokeback Mountain” and “Will & Grace” are popular.  On the marriage issue, however, a counterpoint — which I wish our side had made – is that 31 states have passed anti-gay amendments, along with DOMA on the federal level.  At least on the issue of marriage (which the federal courts have found to be a “fundamental right”), gays are politically vulnerable.

(4) Is being gay an immutable trait?  “Immutable” means the identifiable trait cannot be changed – like race.  One thing I found interesting about Dr. Tam’s video testimony was when he was asked about civil rights: “I believe civil rights to be about skin color — something you can’t change [my emphasis].“ Homophobia is truly on trial here, because the question is whether the Court believes that gays are just “born that way” or they can “be converted.”  Alternately, however, the courts have recognized religion to be a “suspect class” – even though people can change their religion.  But then the question is whether it’s a trait so key to a person’s identity that it would be wrong to make them change.  Not if gays could change — but whether gays should change.

Nobody really expects this Supreme Court to go so far as to call gays a “suspect class.”  But the fact no court (as far as I can tell) has found them not to be a “suspect class” keeps me hopeful.  And with the testimony our side has brought in — from the history of discrimination to the plaintiffs’ very personal stories — there is plenty of ammunition in this case to argue that point on appeal.

Prop 8 Monkey Trial: Will Court Accept Evolution of Science?

By Paul Hogarth

Rick described today’s cross-examination of psychologist Michael Lamb as a replay of the “Monkey Trial” — a cultural battle where two world views duke it out in the courtroom.  But what I find interesting is how the defense has cherry-picked studies of the “need” for kids to have a mother and father — and Dr. Lamb’s responses that those studies are old, and research results over time change.  It reminded me of the following passage from Brown v. Board of Education (1954):

“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [that school segregation has a detrimental effect on black children] is amply supported by modern authority.  Any language in Plessy v. Ferguson contrary to this finding is rejected.” [You can read the full case here.]

That passage was the crux of the legal case in Brown — that just because the Court may have come up with one conclusion in 1896 (because of what was “science” at the time) does not mean that scientists don’t make mistakes.  Over time, additional research can disprove what were once accepted theories.  The great thing about scientists is that they’re constantly second-guessing prior assumption, doing more research to see if old assumptions are correct.  What’s bad about Judges is that they have to rely on what’s already been said — and a lawyer wins his case by convincing the Court what they are doing is consistent with past precedent.

Brown was a unanimous decision, but it was a very different Supreme Court — and I worry about whether at least five Justices in this current Court will have the guts that the Warren Court had at the time.  Do the right thing, because science can change.

Fortunately, Brown was not the last time the Court went out on a limb to say “we’re going to reject this precedent, because what was considered acceptable at the time.”  More recently, the Court said: “[The Founding Fathers] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

That was Lawrence v. Texas, the 2003 case that repealed anti-sodomy laws. And the author of that decision, Anthony Kennedy, is going to be the swing vote if (or when) the Prop 8 case comes to the Supreme Court.  We’re likely to have four votes against us (Thomas, Scalia, Roberts and Alito), so we will need Kennedy’s vote to win.  Fortunately, he will agree with the above-passage in Brown and remember what he wrote in Lawrence to agree with Dr. Lamb — science changes, and the Court must recognize that.

This Afternoon Testimony: Homophobia on Trial

By Paul Hogarth

Rick did a great job live-blogging Dr. Ilan Meyer’s testimony this afternoon on what was clearly heavy emotional stuff to digest.  Again, there was not much “law” in here per se — but it does really get to the heart of this case: homophobia is on trial.  By bringing in an expert to argue that LGBT people suffer a psychological stigma that affects even trivial parts of their lives, the plaintiffs showed that merely giving legal benefits to same-sex couples in a “parallel institution” like civil unions is not sufficient.

It reminded me of the plaintiff’s case in Brown v. Board of Education (1954).  The problem wasn’t just that black children were being sent to inferior schools with less resources — it was the mere separation that created the stigma of inferiority.  In fact, the NAACP in Brown chose Topeka, Kansas because the black segregated schools there were comparatively better than in other places.  California is like Topeka, in the sense that gays comparatively have it “better” here than most states because our domestic partnership law is one of the most comprehensive in the country.

So how would Dr. Meyer’s testimony help — on a legal theory — to overturn Prop 8?  Well, he argued that the mere passage of Prop 8 — taking away the rights of same-sex couples to marry — was a manifestation of the lifelong stigma that LGBT people go through in everyday lives.  The plaintiffs have to prove there is no way to separate Prop 8’s purpose from animus — and what was useful about Dr. Meyer is that he said Prop 8 itself (as opposed to its supporters’ motivations) is the irrational basis.

It’s good to go after the motivations of Prop 8 supporters (see Brian’s excellent post on Dr. Tam), but what I’m worried is the Court may discount that as a few right-wing nutjob who happen to support Prop 8.  Again, it’s not just enough that bigotry was a motivating factor behind Prop 8 — we need to prove that all other factors link to bigotry, that the mere act of it was animus.

Like Brown, this case is going to rely heavily on scientific data and psychology — as opposed to legal theories and precedents that normally guide these cases.  It makes it an unusual case that could be groundbreaking like Brown, but the risk is that it also could be rejected if the Court doesn’t believe the science.  That’s why the defense cross-examination didn’t really push legal theories like they did yesterday — e.g., asking Dr. Peplau if gay people don’t “accidentally have kids.”  What they sought to do today with Dr. Meyer was to impeach his credibility by questioning the whole stigma that gay people go through.  

Homophobia itself is on trial here, which illustrates how much is really at stake here.

Brief Thoughts on the Morning’s Testimony

By Paul Hogarth

With Rick live-blogging today’s trial, I’ve been following the transcript from my office — but haven’t had the chance to provide commentary until now.  I will do this at least once or twice a day for the rest of the trial, as Rick and others live-blog the proceedings.  You can also read my longer analysis of yesterday’s trial right here.

Edwin Egan’s testimony this morning about the economic benefits of same-sex marriage — like Professor Peplau’s psychological testimony yesterday — made a powerful case that, on a public policy level, marriage equality is a good idea.  One can even say the state has a public interest in passing gay marriage.  What worries me from a legal perspective, however, is that it’s not directly on point to the case.  This is a constitutional challenge to Prop 8 – that the fundamental right to marry includes the right to marry a same-sex partner, and that Prop 8 was malicious discrimination motivated by no real purpose besides anti-gay animus. Whether or not gay marriage is “good” for California is not really the point here.

Of course, that’s not to say that Egan’s testimony wasn’t relevant — and could not be used to justify our case.  Brown v. Board of Education (1954), which overturned school segregation, was an unusual case because it relied heavily on sociological data (rather than court precedent and legal theories) to prove that “separate” was, by nature, unequal.  Similarly, Peplau’s data yesterday that gay couples are less likely to register as domestic partners (when it’s available) then if they got married spoke to the psychic effects that a separate institution provides.

The fact that Prop 8 had an adverse economic effect on San Francisco and other cities — and that it makes the City’s ability to enforce non-discrimination laws more burdensome — certainly argues that there were “irrational” purposes for passing it.  Prop 8 was so intent on taking away the right of same-sex couples to marry — that they were at least oblivious (if not reckless) to the fact that there are real-world economic consequences wholly unrelated to the “preservation of marriage” and “family.”  But it may be a stretch for the (inherently conservative) courts to accept that argument.

Probably the most interesting nugget I found in Egan’s testimony was his candid admission that repealing Prop 8 alone would not generate massive tax savings.  “DOMA would have to be lifted before we’d see the effect of this.”  Because the Defense of Marriage Act prevents gay couples from achieving any of the federal benefits of marriage — including joint federal tax returns, etc. — we still don’t have genuine marriage equality anywhere in the United States.  It will be interesting to see how the outcome of this case has any effect on the constitutional challenge to DOMA, which a strong case can likewise be made that it was motivated by sheer animus.  In fact, GLAD (Gay & Lesbian Advocates and Defenders) has filed a federal challenge in Boston alleging just that.

UPDATE: A commenter raises a good point that I hadn’t thought of.  Olson and Boies are probably bringing in all this evidence to cover their bases, because it’s harder to bring in evidence later.  If — and it’s a big if — the federal courts recognize gays as a “suspect class,” then it’s a whole new ballgame.  In that case, Prop 8 would only be constitutional if it’s justified by a compelling public interest, narrowly tailored through its least restrictive means.  All of a sudden, the economic downsides of repealing gay marriage are very on point — because now Prop 8 can be thrown out for not being “narrowly tailored.”

How could gays be recognized as a suspect class?  U.S. v. Carolene Products (1938) laid out the four criteria: (a) a discrete and insular minority (check); (b) history of discrimination (check); (c) group is politically powerless (why the other side brought up “Will & Grace” and “Brokeback Mountain” yesterday.  Of course, the counter to that is we’re batting scoreless on gay marriage initiatives after 31 states); and (d) the trait is “immutable.”  This last point is going to be the most controversial, and strikes to the question — can gays “change”?  But some courts — like California– argue that we don’t need to answer the question of whether homosexuality is immutable.  People can change religions or nationalities, and those are “suspect classes.”  Alternatively, you could say the identity is so central to the person that we can’t or shouldn’t expect them to change so that they are treated equally.

So it comes down to whether the Court thinks gays can (or should) change, and whether or not they’re politically powerless.